Torrence v. Irwin

2 Yeates 210

Opinion

■By the court.

This species of action is founded on possession, 4 Term Rep. 490 ; and the plaintiff at the time of the commission of the trespass, must either have an actual or constructive possession. 1 Term Rep. 480. Though it has been held, that where the owner of lands contracts with others for the sowing it &c. on the halves, he only can have clausum fregit, Cro. El. 144, 1 Leon. 315, Goulds. 77, 3 Leon. 213, 2 Tri. per Pais. 545, yet wre know of no case wherein the landlord having leased to another paying rent, and parted with the possession entirely, can support trespass. Vide 3 Lev. 209. 1 Ld. Ray. 739.

Verdict for the defendant.

[A new trial was moved for in December term following, but the court refused it una vocel\